The opinion of the court was delivered by: CROAKE
This is a derivative action brought by the above-named members and directors of the Belgian American Educational Foundation, Inc. (hereafter BAEF) on behalf of themselves and all other members and directors of BAEF similarly situated, and for the benefit of BAEF. The action is brought to secure legal and equitable relief, both remedial and prospective, in connection with a grant of nine hundred thousand dollars ($900,000.00) to the defendant Herbert Hoover Birthplace Foundation, Inc. (hereafter BIRTHPLACE) in 1962.
There are before the court several motions of the plaintiffs seeking preliminary relief, as well as cross-motions of the defendants. These motions are treated together in this memorandum.
The plaintiffs seek, pursuant to Rules 65 and 66 of the Federal Rules of Civil Procedure, the following provisional remedies, some of them in the alternative:
a) the appointment, pendente lite, of a receiver of the assets of BAEF; or alternatively
b) an order enjoining, pendente lite, certain of the defendants from invading the principal of BAEF, or spending any of its income for "other than its lawful purposes;"
c) an order enjoining, pendente lite, the election of any members or directors of BAEF;
d) an order enjoining, pendente lite, the use by the individual defendants of certain BAEF assets to aid in the defense of themselves or of defendant BIRTHPLACE in this litigation;
e) any other just and proper relief.
The defendants seek by their motions:
a) to dismiss the complaint on the ground that the plaintiffs lack capacity to sue, pursuant to Rules 9, 23 and 23.1 of the Federal Rules of Civil Procedure;
b) to sever and grant judgment for the defendants as to the third claim of the plaintiffs seeking removal of the individual defendants from their positions in BAEF and restoring to said positions former officials improperly removed, pursuant to Rules 23.1 and 54(b) of the Federal Rules of Civil Procedure;
c) to require the plaintiffs to file a bond or other security for costs, pursuant to Rule 83 of the Federal Rules of Civil Procedure and Rule 2 of the Civil Rules for the ...